Common use of Exculpation and Indemnity; Other Interests Clause in Contracts

Exculpation and Indemnity; Other Interests. 11.1 Notwithstanding any provision of this Agreement to the contrary, eSpeed (including its partners, officers, directors and employees) shall not be liable to TBIS or the shareholders of TBIS for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by eSpeed to be within the scope of the authority granted to it by this Agreement and in the best interests of TBIS, except for acts or omissions constituting fraud or wilful misconduct in the performance of eSpeed’s duties under this Agreement. 11.2 Notwithstanding any provision of this Agreement to the contrary, TBIS (including its partners, officers, directors and employees) shall not be liable to eSpeed or the shareholders of eSpeed for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by TBIS to be within the scope of its authority, except for acts or omissions constituting fraud or wilful misconduct in the performance of TBIS’ duties under this Agreement. 11.3 Subject to clauses 11.4 to 11.6 save in the case of (1) personal injury or death caused by a party’s negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS to eSpeed, the aggregate of each party’s liability to the other under this Agreement in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the total aggregate Charges rendered by eSpeed to the TBIS over the preceding 12 calendar months (including 12 months prior to the Effective Date where applicable). 11.4 Where an Affiliate provides Services to eSpeed who then provides such Services to TBIS, eSpeed’s liability to TBIS shall be limited to the amount recovered by eSpeed from the Affiliate and subject to any exclusions or limitations of liability in the agreement or arrangement between eSpeed and such Affiliate. 11.5 Where an Affiliate provides Services directly to TBIS whether on behalf of eSpeed or otherwise, the aggregate of the Affiliate’s liability to TBIS or vice versa in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the equivalent of the total aggregate Charges rendered by the Affiliate to TBIS over the preceding 12 calendar months (including (including 12 months prior to the Effective Date where applicable) save where such liability is governed by a separate agreement between the Affiliate and TBIS. 11.6 Save in the case of (1) personal injury or death caused by a party’s (or eSpeed’s Affiliates’) negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS to eSpeed, each party (and eSpeed’s Affiliates) shall not be liable for any loss of profits, revenue, opportunity, business or goodwill (whether direct or indirect) or any indirect, special or consequential loss which the other party may incur. 11.7 Subject always to the monetary and other limitations of liability set out in clauses 11.3 to 11.5 and notwithstanding clause 11.6, a party (the “First Party”) shall indemnify, defend and hold harmless the other party (and their shareholders, partners, officers, directors and employees) (“the “Second Party”) from and against any and all third party claims or liabilities of any nature (including reasonable legal fees) made against the First Party arising under or otherwise in respect of this Agreement and caused by the Second Party’s (or its Affiliates) breach of this Agreement or a third party agreement or arrangement or its negligence, wilful misconduct (except where attributable to the fraud or wilful misconduct of the Second Party) provided always that: 11.7.1 the Second Party shall have the exclusive right to control the defence of such claim or action; and 11.7.2 the First Party provides the Second Party with all reasonable assistance in connection with such defence. 11.7.3 The provision of any Services by a Third Party provider (regardless of whether they are contracted by TBIS or eSpeed in the first instance), shall be subject to the terms and conditions agreed with such Third Party or applicable to the provision of such Third Party Services (including as to warranties, representations, undertakings, obligations, exclusions and liabilities). TBIS and eSpeed shall to the extent applicable comply with the terms and conditions agreed with such Third Party.

Exculpation and Indemnity; Other Interests. 11.1 9.1 Notwithstanding any provision of this Agreement to the contrary, eSpeed the Services Provider (including its partners, officers, directors and employees) shall not be liable to TBIS the Services Recipient or the shareholders of TBIS the Services Recipient for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by eSpeed the Services Provider to be within the scope of the authority granted to it by this Agreement and in the best interests of TBISthe Services Recipient, except for acts or omissions constituting fraud or wilful misconduct in the performance of eSpeedthe Services Provider’s duties under this Agreement. 11.2 9.2 Notwithstanding any provision of this Agreement to the contrary, TBIS the Services Recipient (including its partners, officers, directors and employees) shall not be liable to eSpeed the Services Provider or the shareholders of eSpeed the Services Provider for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by TBIS the Services Recipient to be within the scope of its authority, except for acts or omissions constituting fraud or wilful misconduct in the performance of TBIS’ the Services Recipient’s duties under this Agreement. 11.3 9.3 Subject to clauses 11.4 9.4 to 11.6 9.6 save in the case of (1) personal injury or death caused by a party’s negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS the Services Recipient to eSpeedthe Services Provider, the aggregate of each party’s liability to the other under this Agreement in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the total aggregate Charges rendered by eSpeed the Services Provider to the TBIS Services Recipient over the preceding 12 calendar months (including 12 months prior to the Effective Date where applicable). 11.4 9.4 Where an Affiliate provides Services to eSpeed the Services Provider who then provides such Services to TBISthe Services Recipient, eSpeedthe Services Provider’s liability to TBIS the Services Recipient shall be limited to the amount recovered by eSpeed the Services Provider from the Affiliate and subject to any exclusions or limitations of liability in the agreement or arrangement between eSpeed the Services Provider and such Affiliate. 11.5 9.5 Where an Affiliate provides Services directly to TBIS the Services Recipient whether on behalf of eSpeed the Services Provider or otherwise, the aggregate of the Affiliate’s liability to TBIS the Services Recipient or vice versa in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the equivalent of the total aggregate Charges rendered by the Affiliate to TBIS the Services Recipient over the preceding 12 calendar months (including (including 12 months prior to the Effective Date where applicable) save where such liability is governed by a separate agreement between the Affiliate and TBISServices Recipient. 11.6 9.6 Save in the case of (1) personal injury or death caused by a party’s (or eSpeedthe Services Provider’s Affiliates’) negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS the Services Recipient to eSpeedthe Services Provider, each party (and eSpeedthe Services Provider’s Affiliates) shall not be liable for any loss of profits, revenue, opportunity, business or goodwill (whether direct or indirect) or any indirect, special or consequential loss which the other party may incur. 11.7 9.7 Subject always to the monetary and other limitations of liability set out in clauses 11.3 9.3 to 11.5 9.5 and notwithstanding clause 11.69.6, a party (the “First Party”) shall indemnify, defend and hold harmless the other party (and their shareholders, partners, officers, directors and employees) (“the “Second Party”) from and against any and all third party claims or liabilities of any nature (including reasonable legal fees) made against the First Party arising under or otherwise in respect of this Agreement and caused by the Second Party’s (or its Affiliates) breach of this Agreement or a third party agreement or arrangement or its negligence, wilful misconduct (except where attributable to the fraud or wilful misconduct of the Second Party) provided always that: 11.7.1 9.7.1 the Second Party shall have the exclusive right to control the defence of such claim or action; and 11.7.2 9.7.2 the First Party provides the Second Party with all reasonable assistance in connection with such defence. 11.7.3 9.8 The provision of any Services by a Third Party provider (regardless of whether they are contracted by TBIS the Services Recipient or eSpeed Services Provider in the first instance), shall be subject to the terms and conditions agreed with such Third Party or applicable to the provision of such Third Party Services (including as to warranties, representations, undertakings, obligations, exclusions and liabilities). TBIS The Services Recipient and eSpeed Services Provider shall to the extent applicable comply with the terms and conditions agreed with such Third Party.

Exculpation and Indemnity; Other Interests. 11.1 Notwithstanding any provision of this Agreement to the contrary, eSpeed BGCI (including its partners, officers, directors and employees) shall not be liable to TBIS or the shareholders of TBIS for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by eSpeed BGCI to be within the scope of the authority granted to it by this Agreement and in the best interests of TBIS, except for acts or omissions constituting fraud or wilful misconduct in the performance of eSpeedBGCI’s duties under this Agreement. 11.2 Notwithstanding any provision of this Agreement to the contrary, TBIS (including its partners, officers, directors and employees) shall not be liable to eSpeed BGCI or the shareholders of eSpeed BGCI for any acts or omissions taken or not taken in good faith on behalf of any of them and in a manner reasonably believed by TBIS to be within the scope of its authority, except for acts or omissions constituting fraud or wilful misconduct in the performance of TBIS’ duties under this Agreement. 11.3 Subject to clauses 11.4 to 11.6 save in the case of (1) personal injury or death caused by a party’s negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS to eSpeedBGCI, the aggregate of each party’s liability to the other under this Agreement in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the total aggregate Charges rendered by eSpeed BGCI to the TBIS over the preceding 12 calendar months (including 12 months prior to the Effective Date where applicable). 11.4 Where an Affiliate provides Services to eSpeed BGCI who then provides such Services to TBIS, eSpeedBGCI’s liability to TBIS shall be limited to the amount recovered by eSpeed BGCI from the Affiliate and subject to any exclusions or limitations of liability in the agreement or arrangement between eSpeed BGCI and such Affiliate. 11.5 Where an Affiliate provides Services directly to TBIS whether on behalf of eSpeed BGCI or otherwise, the aggregate of the Affiliate’s liability to TBIS or vice versa in each 12 calendar month period commencing on the Effective Date, whether for negligence, breach of contract or otherwise, shall, be limited to the equivalent of the total aggregate Charges rendered by the Affiliate to TBIS over the preceding 12 calendar months (including (including 12 months prior to the Effective Date where applicable) save where such liability is governed by a separate agreement between the Affiliate and TBIS. 11.6 Save in the case of (1) personal injury or death caused by a party’s (or eSpeedBGCI’s Affiliates’) negligence, (2) fraud or wilful misconduct of a party, or (3) for payment of the Charges due by TBIS to eSpeedBGCI, each party (and eSpeedBGCI’s Affiliates) shall not be liable for any loss of profits, revenue, opportunity, business or goodwill (whether direct or indirect) or any indirect, special or consequential loss which the other party may incur. 11.7 Subject always to the monetary and other limitations of liability set out in clauses 11.3 to 11.5 and notwithstanding clause 11.6, a party (the “First Party”) shall indemnify, defend and hold harmless the other party (and their shareholders, partners, officers, directors and employees) (“the “Second Party”) from and against any and all third party claims or liabilities of any nature (including reasonable legal fees) made against the First Party arising under or otherwise in respect of this Agreement and caused by the Second Party’s (or its Affiliates) breach of this Agreement or a third party agreement or arrangement or its negligence, wilful misconduct (except where attributable to the fraud or wilful misconduct of the Second Party) provided always that: 11.7.1 the Second Party shall have the exclusive right to control the defence of such claim or action; and 11.7.2 the First Party provides the Second Party with all reasonable assistance in connection with such defence. 11.7.3 The provision of any Services by a Third Party provider (regardless of whether they are contracted by TBIS or eSpeed BGCI in the first instance), shall be subject to the terms and conditions agreed with such Third Party or applicable to the provision of such Third Party Services (including as to warranties, representations, undertakings, obligations, exclusions and liabilities). TBIS and eSpeed BGCI shall to the extent applicable comply with the terms and conditions agreed with such Third Party.